Oregon man jailed for having three water reservoirs (ponds?)

http://realestate.aol.com/blog/2012/08/13/gary-harrington-of-oregon-jailed-for-illegal-rainwater-reservoir/?icid=maing-grid7|maing6|dl18|sec1_lnk3%26pLid%3D191866

This person is being jailed and fined based on violation of a 1925 law. He is also being ordered to empty the pond/reservoirs.

Has anyone else in Oregon, or anywhere else for that matter, come face to face with this challenge? If so, were you able to work around it or ?

Thank you for your input and sharing.

Gail

Water rights laws in most western states are very strict, to protect the availability of everybody getting sufficient water.

What this man did was so grossly defiant of those laws that the state had no choice but to punish him.

I have read that he went as far as to build boat docks on ponds that he was denied permission to create. He had originally built them without permission, and was caught and fined. He was forced to take down his dams. Years later, he went back and rebuilt the dams. These dams are not collecting rain water...they are blocking tributaries to a local river. His greedy defiance earned him the jail time.

Gosh, John, thank you for clearing up his defiant behaviours and actions. It does sound like he was just plain asking for time and fines.

I was not aware of his history. I only saw this online and was concerned about others who might be creating their permie moisture retainers.

Many blessings,
Gail

John Polk, at what point does the water cease to be rain water and then become run off to a tributary? When the rain touches the ground does it cease to be rain water? If it's okay to catch rain water in a rain barrel, can I put out ten thousand 55 gallon barrels on my property to catch rain water before it hits the ground? I know water rights are sticky issues in the western part of our country. I'm guessing this issue will move east if the long term predictions about precipitation declines are accurate. How are we going to deal with this issue as a nation may become big business soon.

a friend recently mentioned this story to me. the friend framed it as a big-government-trampling-on-our-rights situation. that's not at all how I see it. I see it as a man acting only in his own interest, then trying to paint himself as a patriot when those negatively affected by his self-serving actions objected and enforced a law that he was well aware of.

usufruct applies here. we can use a resource for our own benefit that belongs to the commons so long as we don't damage or reduce it. appropriate and thoughtful pond design stores storm water and replenishes groundwater while increasing dry season flow. this is good for the land and people with the ponds, and good for the land and people downhill of the ponds. widely adopted, these sorts of ponds might very well end the nasty fights over water that have been going on in the western states for a long time now.

what the chap in the story did was throw some dams up so he could charge people to fish. he gave no consideration to the impacts his actions would have on the common resource. predictably, those impacts were negative. he violated usufruct. he got what was coming to him.

Each of the western states has its own set of laws governing water rights. Most of these are ancient laws that had their origins in the Territorial days. There were wealthy land grabbers moving in from the east, and they often sought ways to 'monopolize' the water, often as a means to force homesteaders off of the land.

While most of these laws still serve their intended purposes, many are in dire need of being revamped for modern times.

In 2009, Washington state did a major overhaul of their water laws. Within the state, any homeowner may collect all of the rain from the roof (for use only on the parcel where it was collected). They had some stiff fighting from some of the Native tribes, and environmental groups that tried (for years) to prohibit the rain collection. The opposition was worried that too much water would be diverted from the streams, and groundwater. To satisfy both sides, the state added wording to the effect that

Once you have collected the rainwater there are no limitations on its use. If and when the department determines that rooftop or guzzler rainwater harvesting systems are likely to negatively affect instream values or existing water rights, local restrictions may be set in place to govern subsequent new systems (there are currently no restrictions). However, Ecology generally does not expect the collection of harvested rainwater to cause problems or reduce the amount of runoff that would have occurred from the site in its natural, pre-development state.

Utah recently gave very limited permissions to collect rainwater. However, they limit the collection to either one underground cistern of up to 2,500 gallons, or surface mounted barrels...limited to a maximum of 2 barrels, neither of which could be over 100 gallons (a single, 101 gallon barrel will NOT work).

Colorado is another very tough state for water rights laws.

For WA residents, here is a link which pretty well describes your rights under the new water laws
(be certain to follow some of the links on the page for some good information)

http://www.ecy.wa.gov/programs/wr/hq/rwh.html

Thanks for the further info. As water rights issues will begin to creep east the same fights of 150 years ago in the west will creep with them.

My property has no running stream so the idea that what falls on my property is mine to use, or hold, makes sense to me. However, I'm sure this argument is as old as the hills. Do the laws allow for terracing of the land to slow the runoff and increase the absorbed water?

Looks like big dams are regulated but small earthworks may not be. I did a little searching for Kentucky state water laws and found this: http://water.ky.gov/permitting/Pages/default.aspx

You might be able to find out more details with more searching or you might be able to call someone on that website.

Here in Texas we can pretty much do whatever we want with water on our land as long as it isn't a river.

Richard Johns wrote:
My property has no running stream so the idea that what falls on my property is mine to use, or hold, makes sense to me. However, I'm sure this argument is as old as the hills. Do the laws allow for terracing of the land to slow the runoff and increase the absorbed water?

local laws are pretty variable. I lived in a county for a long time that was extremely restrictive, particularly in flood plains and wetlands. regardless of one's opinion about the laws, they weren't terribly effective, since a great many folks do illegal earthmoving there on the sly and rarely get caught. the folks who do try to comply and get permits ahead of time get slowed down in a very inefficient process that can take months or years. things may have changed since I left, but it was a bit of a joke around the valley, and a right-wing state representative got a fair amount of traction with a campaign to split the county in two and end all restrictions on activity on private property in the eastern half. he wanted to name it Reagan County.

my own approach would be to learn the law very well. know it better than the regulators who might come sniffing around. comply with the letter and spirit of the law when it's reasonable. what to do when the law isn't reasonable is up to each individual.


I grew up around folks who were very suspicious of just about any government agency and took very dim views of employees of those agencies. so over that last few years as I've been dealing with both the WSDA and the USDA, I've been pleasantly surprised at how pleasant and helpful everyone I encounter has been. to a person, they were concerned with what regulations were designed to accomplish, not with making it difficult for a small farmer to comply. the WSDA inspector who has been over a few times now is mainly interested in whether how we operate is safe, not with whether we are in strict compliance with regulations that were designed with much larger operations in mind. the USDA and APHIS employees I've dealt with were very patient and helped me get things approved, even though it was fairly difficult for them because things didn't fit well into any of their usual categories.

all that is to say that we shouldn't assume regulators are going to be our adversaries without giving them a chance first. I've heard plenty of horror stories about regulators, but I've never experienced any myself. if an earthworks project could be interpreted as being in violation of water laws, it might be prudent to contact regulators ahead of time to see if it will really be a problem. design it right, and expound the many ecological and hydrological benefits, and you might find that regulators are willing to work with you to find a good solution. might be prudent not to mention the address at first, just in case.

Tyler, thanks for the link. My questions have mostly been related to what the situation is in Western states. I an fascinated to learn that if my land configuration would accommodate it, I could impound 49 acre feet of water to a depth of at least 20' and not need a permit. Mind you, that's assuming the downstream neighbors are safe in the event of dam failure and I had the ten million it would take to build a dam that size.

John Polk wrote:Water rights laws in most western states are very strict, to protect the availability of everybody getting sufficient water.
What this man did was so grossly defiant of those laws that the state had no choice but to punish him.
I have read that he went as far as to build boat docks on ponds that he was denied permission to create. He had originally built them without permission, and was caught and fined. He was forced to take down his dams. Years later, he went back and rebuilt the dams. These dams are not collecting rain water...they are blocking tributaries to a local river. His greedy defiance earned him the jail time.

Hum... well I read a different story.

Seems he got a permit from the beginning, and they were seasonal run off tributaries. Which after his damming still run off into the creak less evaporation from his ponds. But he then went on to build those docks, because hey you want to enjoy the water your saving. The docks do not affect the water (come on) after all. When the powers found out they had them removed and I believe he did build them again and that pissed them off. This lead to their revoking his original permits - how fair is that? And jailing him for the damming which was permitted when they were constructed, but did not include docks. That is what the out cry is about, revoking of permitting water works, because the person pisses you off, and regulating what people 'do' with water on their land. At least that's what I took away from the reported facts of the case. I read a Medford news report, but didn't save a link to it. I try and find it again.

Now Jami, there you go letting the facts get in the way of a good story. Hope you can find the original article. We would prefer to know what we're talking about.

Now Richard, your implying some not nice things. . . tisk tisk

I haven't found the original article, but doing another quick search provided this info which is similar to what I read, although this article is bent more toward anti-government than my first read - http://www.naturalnews.com/036615_Oregon_rainwater_permaculture.html
It's from a natural news web site. I also saw articles that took a different spin and completely leave out that he did have permits in the beginning, rant about the size of his ponds, etc. So the way the story gets told seems to have a lot to do with one's take away of what happened.

And here is even more....

A very short period of time following the expiration of his probation, he once again closed the gates and re-filled the reservoirs. So, this has been going on for some time and I think frankly the court felt that Mr. Harrington was not getting the message and decided that they’d already given him probation once and required him to open the gates and he refilled his reservoirs and it was business as usual for him, so I think the court wanted — it felt it needed — to give a stiffer penalty to get Mr. Harrington’s attention.

So maybe it wasn't about the dock building after all.

Jami McBride wrote:
I haven't found the original article, but doing another quick search provided this info which is similar to what I read, although this article is bent more toward anti-government than my first read - http://www.naturalnews.com/036615_Oregon_rainwater_permaculture.html
It's from a natural news web site. I also saw articles that took a different spin and completely leave out that he did have permits in the beginning, rant about the size of his ponds, etc. So the way the story gets told seems to have a lot to do with one's take away of what happened.

geez Louise. it was typed, so I can't say the author was foaming at the mouth... foaming from the fingertips? that doesn't sound right either.

in the several accounts of the story I've read so far, there is precious little factual information. makes it rather difficult to evaluate what's actually going on. the title of the article Jami linked to is "Oregon criminalizes permaculture; claims state ownership over all rainwater - ponds and swales restricted - jail time for violators." quite a mouthful. there is, however, no evidence presented that the ponds in question had anything to do with permaculture; Jackson County is the prosecuting body, not the State of Oregon; states have long claimed ownership of surface water (and with good reason); and there isn't a single swale involved in this case. I would call it bad journalism, but that would imply that there was a journalist involved.

I still think the guy's in the wrong. since the reporting on the issue seems to be either very brief or heavily biased, I can't be sure about that without spending way more time than I care to diving into court records and Jackson County permitting records. at the very least, that he closed the dams immediately following the end of his probation tells me this latest prosecution shouldn't have come as a surprise to him.

The state (OR) never claimed they owned the water. By law, the water in most western states belongs to the permies.
It is the state's responsibility to assure that the water is fairly appropriated to 'the public' for useful purposes.
Private fishing lakes would be low on their priority list. His ponds were illegally stocked with fish (that he claimed he bought in a pet store!).

For anybody to sequester that much water (40 acre feet, and with dams 15-20 feet high), they would need a water right for that purpose. By blocking those creeks, he negatively impacted people downstream who do have water rights, as well as the general permies.

I would not be surprised to see some of those people sue him for their losses.

(I would never accuseNaturalNews of "journalism"...they probably don't even know what it means)

John Polk wrote:The state (OR) never claimed they owned the water. By law, the water in most western states belongs to the permies.
It is the state's responsibility to assure that the water is fairly appropriated to 'the public' for useful purposes.
Private fishing lakes would be low on their priority list. His ponds were illegally stocked with fish (that he claimed he bought in a pet store!).

though a lot of folks believe it has turned out differently in practice, states are supposed to represent the permies. so I'm pretty sure you and I are saying the same thing.

anyway, I'll be interested to hear how his appeals turn out.

In California, you cant usually get a permit for a pond in a natural waterway, including gulleys , creeks, and dry canyons. You can always get a special permit, but it has to go through public review and you have to do an environmental impact report. You can fairly easily get a permit for a pond on a hillside or a ridge top. You also are not aloud to collect rainwater without a permit, however this is not overly enforced here yet. The pond building is highly enforced, as many counties are perusing government satellite photos annually, looking for code violations as a way to gain revenue in these difficult times. All water ways are controlled by the state, even man made ones!

As far as news articles go, they hardly ever spend the time to get their facts right, or make an effort to tell the truth, they are too busy selling headlines, and stirring up controversy. You can tell when you compare a few different articles on the same story, they will all be different, even numbers and dates are often variable, sad but true, in the area where I live, I see it time and again.

This is an old post, but I live in Jackson county. The big deal was that his property was in the little butte watershed. It’s our main water source. That said, he also lives in the middle of an area that has since caught fire(2020) and many lost their homes. His ponds would have served as fire suppression for helicopters to access. The whole situation is BS. Nobody should see jail time for filling a pond with rainwater. He didn’t dam any creeks or hinder any water right of way.
But again…: it’s old news.

He went to jail for stealing and withholding water from others, soemething the 'land grabbers' did during the land rush west.

I live in Jackson county as well. Water rights are serious business here, and it's only going to get worse. Ponds are not really of much use to firefighters, we have one and they didn't even try to use it for the Obenchain fire last year even though our property was right on the northern edge of the fire.

I'm a prison abolitionist so I wouldn't advocate jail, but would expect destruction of his ponds.